Main contents of the Foreign Corrupt Practices Act
1. Basic prohibition
The Foreign Corrupt Practices Act stipulates that it is illegal to bribe foreign government officials to obtain or retain certain businesses. To constitute such an illegal act, the following five conditions must be met:
A: Subject of the crime: The Foreign Corrupt Practices Act may apply to any individual, company, official, director, employee, enterprise agent or any shareholder acting on behalf of the company. If an individual or company orders, authorizes or assists others to violate the anti-bribery clause, the individual or company will be punished.
When the United States defines the jurisdiction of bribing foreign officials, it depends on whether the offender is the issuer, domestic stakeholders, foreign natural persons or foreign companies.
The issuer is a legal person registered in the United States or a legal person who needs to submit periodic reports to the SEC. Domestic stakeholders refer to American citizens, American nationals or natural persons who have settled in the United States, or any headquarters, partnership company, association, joint-stock company, trust, unincorporated organization or sole proprietorship enterprise established under the laws of the United States or having its principal place in the United States.
According to the principle of territorial jurisdiction or personal jurisdiction, issuers and domestic stakeholders may be held accountable by the Foreign Corrupt Practices Act. If the issuer and domestic stakeholders send or transfer bribes to foreign officials by US mail or other means, the issuer or domestic stakeholders should be responsible for the behavior. Transfer methods include telephone, fax, wire transfer or interstate and international travel payment. In addition, issuers and domestic stakeholders may also be responsible for bribery outside the United States. Therefore, American companies or natural persons may be responsible for the bribery of overseas authorized employees or agents with foreign bank accounts, even if no personnel located in the United States participate in the act.
Before 1998, the scope of application of the Foreign Corrupt Practices Act did not include foreign companies and foreign natural persons, except for enterprises qualified as issuers. The revised version of 1998 extends the Foreign Corrupt Practices Act to foreign companies or natural persons through territorial jurisdiction. Foreign companies or individuals who directly or indirectly violate the law in the United States will be punished by the Foreign Corrupt Practices Act, regardless of whether the Act uses the US Postal System or other transfer payment instruments.
Finally, if the activities authorized, instructed or controlled by overseas subsidiaries cause disputes, the American parent company may bear legal responsibility. Similarly, if they are employed by or act on behalf of overseas subsidiaries, American citizens, residents and domestic stakeholders may also bear legal responsibility.
B: Bribery intention: individuals must pay or authorize the payment of bribes with bribery intention, and the payment must attempt to cause the briber to abuse his power to seek benefits for the briber or anyone else. It is worth noting that the Foreign Corrupt Practices Act does not require that the purpose of bribery must be successful, and offering or promising bribes constitutes an illegal act. The Foreign Corrupt Practices Act prohibits any attempt to pay bribes, whether the intention is to use the official position of a foreign official to influence an act or decision, to urge an official to commit or not commit any act that violates his legal obligations, to obtain improper benefits, or to induce a foreign official to use his influence to influence any act or decision.
C: Bribery method: The Foreign Corrupt Practices Act prohibits paying, offering, promising to pay or authorizing a third party to pay or offer money or anything of value.
D: Bribery target: The Foreign Corrupt Practices Act only covers bribery against foreign officials, political parties, party workers or any candidate for foreign government positions. A foreign official refers to an employee or official of any foreign government, international organization or any department or institution representing an official capacity. When applying the Foreign Corrupt Practices Act, we should consider the definition of "foreign officials" under certain circumstances, such as members of the royal family, members of the legislature and officials of state-owned enterprises.
The Foreign Corrupt Practices Act applies to bribery of any public official, regardless of his position or position. The Foreign Corrupt Practices Act focuses on the purpose of bribery, rather than the specific content of bribery, such as official reception, offering or promising payment. It is not illegal to pay convenience fees to speed up daily government actions.
E: Business purpose test: The Foreign Corrupt Practices Act prohibits bribery to help enterprises acquire, retain or guide a business. "Obtaining or retaining business" is a broad definition of the Ministry of Justice, which does not only refer to rewarding, obtaining or extending contracts. It should be pointed out that this business itself can be obtained or retained without the permission of foreign governments or foreign government departments.
2. Third-party payment
The Foreign Corrupt Practices Act prohibits bribery through intermediaries. It is illegal to pay a third party knowing that all or part of the funds will be paid directly or indirectly to foreign officials. "Knowing" includes deliberately ignoring or ignoring. Third-party payment is illegal as mentioned above, but it is legal if the payee is an intermediary and the payment behavior is "official diplomacy".
Intermediaries include joint venture partners or agents. In order to avoid being sued for bribery by a third party, American companies are encouraged to conduct due diligence and take all necessary measures to ensure good business relations with partners and agents. Due diligence refers to the investigation of potential foreign representatives and joint venture partners to determine whether they are qualified, whether they have personal or professional relations with the government, the number and reputation of customers, and their reputation in American embassies or consulates, local banks, customers and business associations. In addition, in the negotiation of business relations, American companies should know whether the local business environment will make American companies violate the Foreign Corrupt Practices Act, such as the highly centralized board of directors and the lack of transparency in expenses and accounting books. Such an environment obviously does not qualify for the resources of joint venture partners or agencies, regardless of whether these joint venture partners or agencies have officially become potential customers of the government.
3. Legal situation
The Foreign Corrupt Practices Act clearly stipulates that "convenience fees" paid to accelerate "daily government actions" are legal. The daily actions of the government include: obtaining permits, licenses or other official documents; Handle government documents, such as visas and work orders; Providing police protection; Mail transmission; Inventory checking and telecommunications services related to the performance of the contract; Water and electricity services; Loading and unloading goods; Save; Cross-border transportation, etc.
entreat
The defendant has the right to defend the Foreign Corrupt Practices Act if it can be proved that these expenses are legal according to foreign statutory laws, or that these expenses are used to display products or perform contracts.
It may be difficult to define whether an expenditure complies with foreign statutory laws. Faced with this situation, we should consult a lawyer or use the Foreign Corrupt Practices Act of the Ministry of Justice to check whether the act is legal.
In addition, the defense demanded that the expenses meet the defense reasons at the first time. If the defense fails to reply in time, the money does not constitute legal money.
5. Legal sanctions
Criminal liability: companies and other commercial entities that commit crimes can be fined up to $2 million; Natural persons will be fined up to $654.38 million and imprisoned for less than five years. Moreover, according to the provisions of the Selective Penalty Law, the fine amount may be higher. The actual fine may be twice the profit from taking bribes.
Civil liability: The Attorney General or the SEC may file a civil lawsuit against the briber, demanding a maximum fine of $65,438+0,000. At the same time, in the lawsuit filed by the SEC, the court can also decide to impose additional fines. The maximum amount of additional fines is: ① the total amount of illegal income; (2) If the violation is serious, the limit is: USD 500,000-65438,000+for natural persons and USD 500,000-500,000 for others.
At the same time, the injured individual can also file a civil lawsuit against the offender according to the Law on Unfair Enrichment and Unfair Crime Organization or other federal and state laws. A competitor who loses trading opportunities due to the illegal acts of the violator may file a civil lawsuit.